Ex-FTC Official Now at Kroger Firm ‘Screened’ From Merger Fight

A former Federal Trade Commission official involved in the agency’s effort to block the Kroger-Albertsons merger won’t help his law firm’s fight to save the deal, according to the firm.

Mark Seidman, who joined Weil Gotshal & Manges this month after 18 years as an FTC lawyer, is banned from working on the deal and any other matters that he participated in at the agency, a firm leader said Monday.

“As required by Weil’s internal procedures and FTC rules, Mark is screened from and will have no involvement in the matter,” Jeff Perry, co-head of Weil’s US antitrust practice, said.

Seidman’s hire highlights the ethical hurdles facing government lawyers who leave private practice. Attorneys with his pedigree are highly sought after by major firms that represent many of the world’s largest companies.

Weil lawyers are part of a legal team defending Kroger Co. in an FTC lawsuit to block the $25 billion deal with Albertsons Cos. The agency claims the merger, which would be the largest supermarket tie-up in US history, would drive up grocery costs for American consumers.

Seidman was among the lawyers representing the FTC when it filed the lawsuit in Oregon federal court in February, court records show. He withdrew his appearance the following day and said he officially left the FTC July 12.

At Weil, Seidman will also sit out the firm’s work for Kroger in a separate lawsuit in a federal court in Ohio, Perry said. The company in that suit is challenging the FTC’s authority.

Seidman held leadership roles in the FTC’s Mergers IV division over the last decade. He was the lead government enforcer for transactions in the grocery, retail, consumer products, and health care services industries, and acted as a first-chair trial attorney in FTC merger cases.

Merger Reviews

Seidman joined Weil as a partner in the massive law firm’s Washington office. Weil generated $1.8 billion in gross revenue and $4.6 million in profits per equity partner in 2023, according to data released by The American Lawyer.

“Anything I’ve participated in at the FTC is not something I would work on in private practice,” Seidman said. “But certainly, I expect my practice to focus on merger review and merger litigation.”

Prior to his appointment as assistant director of the agency’s Mergers IV division in 2020, Seidman served as deputy assistant director. He previously was counsel to the director of the bureau of competition from 2012 to 2014.

Representatives for the FTC declined to comment on Seidman’s departure.

Professional ethics rules and federal law ban lawyers from representing clients in matters they were involved in as a government attorney, said Michael Frisch, ethics counsel for Georgetown University Law Center and an adjunct law professor. They also prevent lawyers from litigating before their former agency for a year, Frisch said.

Seidman acknowledged he is subject to a one-year ban on appearing before the FTC. He said he’s permitted to work on FTC matters and provide advice “in the background.”

“I will be able to work on the background with clients on mergers that they may be considering,” Seidman said.

Whether former government lawyers like Seidman can advise clients on a matter involving the FTC during that time is a “loosey-goosey,” question, Frisch said. “You can give advice on a matter, but you can’t appear before the agency,” he said. “It’s probably a grey area with the black-letter law.”

Antitrust Powerhouse

Antitrust activity by federal overseers has driven hiring activity and client engagements for Big Law firms. Perry said he anticipates client demand to continue to drive hiring in the antitrust practice.

The firm’s antitrust lawyers represented Meta Platforms Inc. in its acquisition of Within Unlimited, a virtual reality studio, and Microsoft Corp. in its acquisition of Activision Blizzard. The Microsoft-Activision deal, the largest gaming deal in history, drew a challenge from the FTC. The company fought off that challenge with a team that included lawyers from Weil.

Seidman said he began speaking to leaders at Weil about joining the firm in the spring. He was in talks with several firms at the time, he said.

He chose Weil because of his experience working “across the table from” the firm’s antitrust lawyers while at the FTC.

“I’m very familiar with the antitrust practice at Weil Gotshal and thought it was one of the premiere antitrust practices in the country and the world,” Seidman said. “When they expressed an interest, I was very interested in the practice.”

Seidman’s hire comes as FTC lawyers deploy novel statutory interpretations to crack down on consolidation. The agency is looking in part at potential harm caused by mergers, rather than present market conditions, and impacts of mergers on workers’ rights.

Possible harms to competition among unionized workers factored into the FTC’s challenge to the Kroger-Albertsons merger. The agency argued the merger would “eliminate” the chains’ competition for workers, leading to better wages and benefits.

“There’s also been an increased focus on impact of mergers on labor markets and how companies will negotiate with their workforce and whether the mergers will have an impact on those negotiations,” Seidman said.